But Santam says policy had not taken effect

A South African couple now living in Australia is suing the company over its refusal to honour a medical malpractice policy of a gynaecologist who failed to pick up that their baby had Down’s syndrome.

After winning their initial case for damages against Dr Lourens Kriel, Tammy Souster, 33, and her husband, Michael Savage, have now gone to the High Court in Johannesburg to fight Santam for damages that could amount to R20-million.

Last year Judge Phillip Coppin found Kriel liable for damages and concluded that his negligence had occurred while he had insurance cover.

Kriel had failed to inform Souster that it was advisable to undergo an amniocentesis test at the 16th week of her pregnancy in 2007 to test for chromosomal abnormalities.

The gynaecologist, who paid an annual premium of R49 656 for medical malpractice cover, was shocked when Santam withdrew its support in the court case two weeks before their trial.

Santam said his negligent actions took place weeks before the policy became active. Its contention is that on July 17 2007, two weeks before the policy took effect, Kriel used an ultrasound machine that may not have accurately measured the nuchal translucency of Souster’s foetus.

A nuchal translucency test measures the thickness of the skin fold on the back of the neck and is a reliable indicator of whether the unborn child could be born with Down’s syndrome.

But Savage and Souster, who emigrated in March 2008, three months after their daughter Tayla was born, argued in court papers that Kriel’s action on July 17 was only part of this continuing negligence during Souster’s pregnancy.

According to court papers, he had also, on August 14 2007, “definitely” excluded the existence of any significant risk of abnormality in the foetus. This occurred during the time his insurance policy was active.

Souster, an environmental consultant, said she would have terminated her pregnancy if any abnormality had been detected.

She and Savage are now seeking a court order that Santam, subject to a limit of R20-million, should pay them for the damages, costs and expenses for which Kriel was found liable. The case was scheduled for trial this week, but has been removed from the roll because there is no judge available for the period set down for hearing the matter.

The couple, whose attorney is medical specialist Mervyn Joseph, said in court documents: “The defendant [Santam] is liable, in terms of the policy, to indemnify Kriel against the claim.”

Santam admitted in its plea that it had instructed law firm Webber Wentzel to defend Kriel in the claim “whilst reserving its rights on whether Kriel was entitled to indemnity in terms of the policy”.

It said its rejection of Kriel’s claim for indemnity was based “inter alia on the fact that the claim arose out of circumstance that was committed prior to the retroactive date [when the policy became effective].”

In a letter to Kriel, Webber Wentzel said: “You advised us that on July 17 2007 you made use of your Toshiba Capasee ultrasound machine to perform the first-trimester screen on the plaintiff [Souster].

“It is likely that a court... will find that you were negligent in having used the Toshiba to perform the ... screen and that the plaintiff’s damages were caused by such negligence.”

Kriel responded: “My financial position is such that I cannot afford costly litigation at my own expense. I have been left high and dry at the last moment and do not have the necessary legal expertise to sensibly and responsibly take decisions regarding and in defence of myself at a trial.”

Joseph, who visited the family in Australia, said the couple and Tayla had ‘bonded beautifully”. “They dote on her and she rules the roost.”

He said that the couple had entered into an agreement with Kriel to cede all his rights to the insurance policy to them so that they could continue with the action against Santam.

Said Joseph: “We are astounded and disappointed at the attitude of [Kriel’s] insurer as we are of the view that he enjoys cover under the policy.

“It is unconscionable that medical professionals should be exposed to financial ruin when insurers pull the rug under them for what we believe are unjustified reasons.

“Ben Kingsley says [in the commercial] that people should scrutinise their policy to ascertain whether it is the insurance they think it is or whether it just resembles it. I would encourage all medical practitioners to do just that.”